Difference between revisions of "Creditors' Remedies against Debtors (10:III)"

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Creditors' Remedies against Debtors (10:III) (view source)

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Prior to taking action against a debtor, the creditor must provide a reasonable time for payment on a demand loan or term  loan. That time begins to run from  the date of the demand for payment and not the date of the loan. What constitutes a reasonable demand period depends upon the facts of each case: see ''Redhawk Drilling Ltd. v TD Bank'' (1986), 49 Alta LR (2d) 38; ''Whonnock Industries v National Bank of Canada'' (1987), 16 BCLR (2d) 320, 42 DLR (4th) 163; ''Lister v Dunlop (Ronald Elwyn Lister Ltd vDunlop Canada Ltd)'', [1982] 1 SCR 726. For a list of factors to be considered see ''Mister Broadloom Corporation (1968) Ltd v Bank of Montreal'' (1979), 25 OR (2d) 198 (Ont HCJ). As a result of the recent passage of a revised Limitation Act in British Columbia the period for commencement of proceedings for the collection of a debt in B.C. is 2 years from the “date of discovery” of the claim. The date of discovery is defined as the day on which the claimant knew or ought reasonably to have known all of the following:         
Prior to taking action against a debtor, the creditor must provide a reasonable time for payment on a demand loan or term  loan. That time begins to run from  the date of the demand for payment and not the date of the loan. What constitutes a reasonable demand period depends upon the facts of each case: see ''Redhawk Drilling Ltd. v TD Bank'' (1986), 49 Alta LR (2d) 38; ''Whonnock Industries v National Bank of Canada'' (1987), 16 BCLR (2d) 320, 42 DLR (4th) 163; ''Lister v Dunlop (Ronald Elwyn Lister Ltd vDunlop Canada Ltd)'', [1982] 1 SCR 726. For a list of factors to be considered see ''Mister Broadloom Corporation (1968) Ltd v Bank of Montreal'' (1979), 25 OR (2d) 198 (Ont HCJ). As a result of the recent passage of a revised Limitation Act in British Columbia the period for commencement of proceedings for the collection of a debt in B.C. is 2 years from the “date of discovery” of the claim. The date of discovery is defined as the day on which the claimant knew or ought reasonably to have known all of the following:         
*a) That injury, loss or damage had occurred;        b) That the injury, loss or damage was caused by or contributed to by an act or         omission;       c) That the act or omission was that of the person against whom the claim is or may be made;        d) That, having regard to the nature of the injury, loss or damage, a court proceeding would be an         appropriate means to seek to remedy the injury, loss or damage If however, the cause of action occurred prior to the coming into force of the revised Limitation A ct, the previous limitation periods remain in effect.  Therefore, if the debtor’s acknowledgement in writing of the cause of action, or the last payment on the debt occurred prior to June 1, 2013, then the limitation period for the commencement of proceedings for the collection of debt is 6 years from that time. NOTE:                       The limitation period does not apply to claims exempted under sections 3 or 7.  A.Secured Creditors 1.Definition A secured creditor holds a lien, mortgage, or charge against the debtor’ s assets or collateral as security for the repayment of the debt. 2.General Introduction to the PPSA The Personal Property Security Act [PPSA] establishes a system for the  registration,  priority,  and enforcement  of  secured  loan  and  credit  transactions  involving  personal  property  in  B.C.Secured  creditors  holding  agreements  that  create  or  provide  for  security  interests  (i.e.  chattel mortgages and conditional sales agreements) must register these security agreements in order to “perfect” its interest and establish its priority vis-à-vis third parties. For  agreements  that  are  subject  to  the  PPSA,  Part  5  of  the  PPSA  outlines  the  creditor’ s remedies  (ss  56 -  Rights  and  remedies,  57  -  Collection  of  payments  under  intangibles  or chattel paper, 58 – Right of seizure or repossession, and 67 - Rights and remedies: consumer goods). For agreements that involve fixtures, crops or accessions, ss 36 – 38 apply. In addition, Part 6 contains some sections (i.e. ss 68(2) - Good faith and commercially reasonable, and 72 - Notice) that are of procedural importance. NOTE:              These  are  examples  of  issues  that  may  be  encountered by  clinicians  while  dealing with  the  PPSA.  Remember  that  PPSA  issues,  particularly  those  involving  priority
*a) That injury, loss or damage had occurred;         
*b) That the injury, loss or damage was caused by or contributed to by an act or omission;        
*c) That the act or omission was that of the person against whom the claim is or may be made;         
*d) That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage  
 
If however, the cause of action occurred prior to the coming into force of the revised ''Limitation Act'', the previous limitation periods remain in effect.  Therefore, if the debtor’s acknowledgement in writing of the cause of action, or the last payment on the debt occurred prior to June 1, 2013, then the limitation period for the commencement of proceedings for the collection of debt is 6 years from that time.  
 
'''NOTE:''' The limitation period does not apply to claims exempted under sections 3 or 7.   
 
== A. Secured Creditors ==
 
=== 1. Definition ===
 
A secured creditor holds a lien, mortgage, or charge against the debtor’s assets or collateral as security for the repayment of the debt.  
 
=== 2. General Introduction to the PPSA ===
 
The Personal Property Security Act [PPSA] establishes a system for the  registration,  priority,  and enforcement  of  secured  loan  and  credit  transactions  involving  personal  property  in  B.C.Secured  creditors  holding  agreements  that  create  or  provide  for  security  interests  (i.e.  chattel mortgages and conditional sales agreements) must register these security agreements in order to “perfect” its interest and establish its priority vis-à-vis third parties. For  agreements  that  are  subject  to  the  PPSA,  Part  5  of  the  PPSA  outlines  the  creditor’ s remedies  (ss  56 -  Rights  and  remedies,  57  -  Collection  of  payments  under  intangibles  or chattel paper, 58 – Right of seizure or repossession, and 67 - Rights and remedies: consumer goods). For agreements that involve fixtures, crops or accessions, ss 36 – 38 apply. In addition, Part 6 contains some sections (i.e. ss 68(2) - Good faith and commercially reasonable, and 72 - Notice) that are of procedural importance. NOTE:              These  are  examples  of  issues  that  may  be  encountered by  clinicians  while  dealing with  the  PPSA.  Remember  that  PPSA  issues,  particularly  those  involving  priority
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